[I]n Boumedienne, the President is not claiming unilateral authority; he has worked with the other political branch of government to produce statutory law regulating the rights of Guantanamo detainees. Nor does the MCA purport to oust the jurisdiction of the courts. Although it eliminates the formal habeas corpus remedy, it substitutes in its place a new procedural regime, whereby Gauntanamo detainees get judicial review of the lawfulness and evidentiary basis for their detentions in the D.C. Circuit (and, as a discretionary matter, in the U.S. Supreme Court).

A lawyer for the detainees at Guantanamo Bay underwent a barrage of questions Wednesday from Chief Justice John Roberts and Justice Antonin Scalia, with the attorney portraying the case as a fundamental test of the U.S. system of justice....

UPDATE: You can listen at the C-Span link now.

MORE: Here's Marty Lederman's view of the argument. And here's the MP3 of the oral argument at Oyez.

AND: I was especially struck by Justice Breyer, speaking from 50:44 to 52:51.

Should be quite interesting. That the detention of illegal combatants there is unconstitutional is an article of faith in the anti-war and leftist crowds. And, of course, this includes much of legal academia.

My guess is that it won't be the usual judicial line ups, and will likely be close. We shall see.

The case is interesting, both for the issues that the Court is being asked to decide and for those that are not being argued. The first issue -- whether the enemy combatants held at Guantanamo have a constitutional right to pursue habeas relief -- turns mostly on whether Guantanamo is deemed to be within the "sovereign territory" of the US. The two sides offer lots of arguments about some WW2 cases -- Eisentrager and Yamashita mainly -- that held that aliens held outside the US had no constitutional rights that they could litigate in a US court. In Rasul, Justice Kennedy (who is likely to be the deciding vote on this issue) has already stated his view that Guantanamo is, in all relevant senses, part of the "sovereign territory" of the US. The Gov't is not contesting in this casethat an enemy combatant held within the US may seek habeas relief. So I assume that the Gov't will lose on this one, unless Kennedy has a sudden epiphany ('tis the season, so you never know).

Apart from the status of G'mo, there are two very interesting issues presented by this case, one of which is likely to be the focus of the decision while the other is mysteriously missing from the case (at least it's a mystery to me).

The issue that is likely to be decisive is whether the procedures Congress created in 2005 and 2006, pursuant to which a detainee at G'mo may challenge his designation as an "enemy combatant", are an adequate substitute for habeas. Congress passed those statutes in response to the Supreme Ct's decisions in Hamdi (2004) and Rasul (2005), and Congress was plainly seeking to cabin any judicial attempt to provide the detainees with access to civilian courts. The Combatant Status Review Tribunals (CSRTs) set up by Congress, with limited review in the DC Circuit thereafter, provide for a narrower scope for judicial review of the basis for detention than does routine habeas. Those procedures, along with various statutory presumptions in favor of the Gov't, are certainly different from normal habeas. The detainees argue, with some force, that the deck is stacked against them in the CSRTs. The Gov't responds that the CSRT process is much more expansive in how it allows a detainee to challenge his status designation than what the Geneva Conventions or prior practice had granted alien detainees in these circumstances.

For the detainees, the determination of their status as "enemy combatant" is the entire ball game -- if they are properly so classified, then they can be detained until the end of hostilities. The point of detaining them is to keep them from rejoining the hostile forces fighting against the US. They aren't charged with any crime, and thus they will never be brought to trial (there being nothing to try). The petitioners in this case have already been held for 6 years, and there is no obvious point when the hostilities in which they have been deemed combatants will be "over."

I suspect that this issue will play out in terms of the degree of deference the Court needs to give to Congress and the President in this context, as well as the administrative burden of requiring proof in a domestic court of facts that occurred half a world away. Those who think the context is key -- aliens detained abroad in connection with a asymmetrical war against a shadowy enemy -- are likely to be swayed by an argument for deference. Those who view the case in terms of individual determinations where the risk of an erroneous determination is high are less likely to come out that way, and will focus on the differences between the CSRT process and routine habeas. It may all come down to one of Kennedy's "split the baby" opinions, with a 4-4-1 decision.

The issue that hasn't come up -- at least I didn't see it in the merits briefs put precisely this way -- is the interplay between the Art I's Suspension Clause (limiting Congress's power to suspend habeas) and Congress' plenary power under Art III to "ordain and establish" such inferior courts as Congress deems best, subject to whatever limitations on their jurisdiction as Congress deems best. The Suspension Clause pretty clearly applies only domestically, but a decision against the Gov't on the "sovereign territory" issue is likely to be dispositive in finding that the Suspension Clause applies here. Art III empowers Congress to create lower courts with whatever jurisdiction to exercise a portion of Art III's "judicial power" Congress deems best. As for the Supreme Ct, Art III provides for original jurisdiction in a small class of cases (this wouldn't fit within it) and "[i]n all other cases ... the supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make." That Congress is empowered to specify the federal courts' jurisdiction seems quite clear.

The detainees' argument is that Congress violated the Suspension Clause by stripping them of the right to seek habeas in a federal court. But it's the way that Congress did that which creates the problem of the interplay between Art I and Art III here. In the Military Commissions Act (2006) Congress expressly stripped the federal courts of any jurisdiction to entertain habeas petitions by the G'mo detainees, and was equally clear that the sole method by which those detainees could challenge their combatant status was through the CSRT process. There isn't much law under the "ordain and establish" clause of Art III, and this is tricky territory to be sure. But even if the G'mo detainees have a constitutional right to seek habeas in a federal court, the only such court that derives its existence and jurisdiction directly from the Constitution is the Supremes. The D Ct and the Ct of Appeals are purely creations of Congress, and have only such jurisdiction as Congress chooses to give them. It would certainly be an odd result if (a) the detainees had a Constitutional right under the Suspension Clause to pursue habeas but (b) the only federal court with jurisdiction to hear their habeas petition was the Supreme Ct (and that only by default, since Congress has stripped the inferior federal courts of any such jurisdiction). The mystery in this case is that the Gov't has not argued that Art III dooms the petitioners' case even if they were right about the Suspension Clause. Perhaps the Gov't decided that the case was already loaded with difficult issues, and this wasn't a good vehicle to raise even more difficult issues under Art III.

Joshua said..."Scalia just totally destroyed Waxman[?] Oh please. Scalia's legal skills are in serious decline. The only thing he's totally destroying these days are cannolis."

(1) I have it on very good authority that he's fonder of cannelloni; (2) what's your best case for that proposition; and (3) what's your answer to his question - or your explanation for why the answer doesn't matter?

Request to other commenters: no one please give away what Scalia's question to Waxman was until Joshua replies (or the transcript becomes available), because I'd bet real money he's talking out of his ass and doesn't have a clue what Scalia asked or how Waxman replied.

Which Scalia question made you jump up and kiss the poster of Scalia you have hanging over your bed, Simon? The one about whether the new habeas statute made Rasul inapplicable? The "I'm still waiting for a case" whine?

I agree that Scalia -- using much the same historical point that McConnell did in that moot court I posted -- more or less demolished Waxman's rule for determining who doesn't get habeas. But the real cuts into the policy rationales for his rule came from Roberts and Alito, who suggested that deciding in Waxman's favor would give anyone, anywhere in the world, a right to habeas and put us at war with Cuba. I also found amusing Kennedy's suggestion -- given he wrote a concurrence in Rasul -- that the detainee's lawyers could file a suit in Cuban courts and appeal to the American General in control of Cuba. I don't think Kennedy was helping Waxman out.

I also doubt Souter convinced anyone but himself in his colloquy with Clement. Souter says some crazy stuff. Ginsburg and Stevens made interesting arguments and I'm unsure exactly where Breyer and Kennedy are, but Souter is a nutbag.

Wasn't it Breyer who got very heated up over the idea that there would be an ongoing constitutional claim and no forum remaining?

Yes. But Souter got into a spat with Clement over what "interesting issues" would be remaining if the Court affirmed on alternate grounds and whether the Court could legitimately do anything but reverse given the posture of the case.

Breyer's questions, I think, could be handled with 1. defer to Congress and 2. Clement's answers to Kennedy in their colloquy about Breyer's "cleverly crafted" hypothetical.

Bruce, you really shouldn't be surprised by this. As a long time reader, this blog has alot of commenters who show significant deference to the executive branch, especially in anything remotely resembling national security matters.

Regardless of the merits of such a constitutional view, it's not nearly as commonplace elsewhere in the legal world. Hence the vortex.

JUSTICE KENNEDY: I didn't understand that point when you were having your colloquy with Justice Breyer, either. I thought you were going to answer to Justice Breyer, that the court of appeals does have the right to determine whether to the extent the Constitution and the laws of the United States are applicable, whether such standards and procedures, such as CSRT, are -- - to make the determination -- are consistent with the Constitution --

GENERAL CLEMENT: Yes, Justice --

JUSTICE KENNEDY: -- that's provided in the MCA.

GENERAL CLEMENT: It absolutely is. I think Justice Breyer's hypothetical was cleverly crafted, though, to take that off the table.

JUSTICE BREYER: It wasn't cleverly redrafted. I wanted to say that the people I'm thinking of are not challenging those procedures. What they say is you could have the best procedure in the world, and they're totally constitutional -- we'll assume that -- they're assuming it. They're not going to concede it.

They're assuming it.

On that assumption, we still think that Congress, the President, the Supreme Court under the law, cannot hold us for six years without either trying us, releasing us, or maybe confining us under some special statute involving preventive detention and danger which has not yet been enacted.

JUSTICE KENNEDY: But the statute --

JUSTICE BREYER: They are arguing it.

JUSTICE KENNEDY: But the statute talks about standards. Why can't that question that Justice Breyer raised be reached by the Court of Appeals under the CSRT review hearings when it determines the constitutional adequacy of the standards, or am I missing something?

GENERAL CLEMENT: Well, I think, again, that Justice Breyer's hypothetical, as I understood it, sort of assumed away the adequacy of all of the standards and just said: Putting all of that to one side, I have some other constitutional claim.

And I'm just not so sure that habeas ever allowed you to sort of bring every claim that you possibly wanted to; and I think the -- what I -- the way I read this Court's Hamdi decision is what was envisioned on a habeas case in a case where Army Regulation 190-8, which, of course, the plurality cited, was complied with. It was in that case: The habeas petition in court would take that as a starting point, and that you wouldn't necessarily be able to say: Look, it was nice that we had that proceeding, but put that to one side. I have another claim.

I don't think the court, even in habeas, would have envisioned that that would go forward.

JUSTICE KENNEDY: Just one more question on that point: Would the Court of Appeals in -- under the MCA have the authority to question the constitutionality of the definition of noncombatant -- of unlawful combatant?

GENERAL CLEMENT: Absolutely, Justice Kennedy. That would be available to them in the D.C. Circuit.

[I] was a bit surprised that there is a lot more support for the Administration's position here than over there

Maybe I'm missing something, but this far there has been *maybe* one post in this thread supporting the Administration's position -- and quite a few over at Volokh. So I don't see how you can make that claim.

Maybe I'm missing something, but this far there has been *maybe* one post in this thread supporting the Administration's position -- and quite a few over at Volokh. So I don't see how you can make that claim.

It was the general tenor of the two threads. Not supported by a statistical count, but rather just gut feeling reading the two threads. IN particular, it seemed like anyone supporting the Executive and Legislative branches over there at Volokh.com yesterday was jumped on pretty hard.

Which brings me to another point, that seems to have been often missed, but was picked up Richard Dolan here, and that is that it isn't just the Administration on the one side. Rather, Congress has weighed in on that same side by explicitly stripping the Article III courts it created of the jurisdiction to hear these cases.